|
LETTER TO M.P.P. #2 :
Adoption Facts and Fiction and Canadian & International Law
Sandi Jowett
Cameron, Ontario, Canada
June 28, 2001
To: All Conservative MPPs
Re: Bill 77 Adoption Disclosure Statute Law Amendment Act, 2001
Dear Member of the Ontario Provincial Parliament,
Existing adoption legislation is outdated. It needs to be reformed
on a basis of honesty, openness, integrity and truth. Adoption law
must be based on fact and not on opinion.
Public dissatisfaction concerning the severe restrictions on accessing
adoption information led, in 1985, to a study on adoption disclosure
commissioned by the Ontario government and headed by Professor Ralph
Garber. His report, Disclosure of Adoption Information, determined
two principles concerning disclosure:
- facts surrounding an individual’s adoption belong to that
person, no matter where the information is stored and
- revealing those facts has not been shown to cause harm.
The Retrospective Argument
The usual argument raised against this proposed amendment is that
the law guaranteed birth parents that their identity would never
be revealed to the adoptee or adoptive parent and that to do so
now would amount to a retrospective altering of their rights.
This is not the case.
Until the 1978 revision of the Child Welfare Act S.O. 1978 c.85,
Ontario adoption legislation contained only two requirements respecting
confidentiality, i.e., that the adoption application be heard in
chambers and that the court file be sealed up and opened only on
the direction of a judge or provincial official. These two restrictions
in an otherwise open judicial system were aimed at preventing the
public at large from hearing the application and perusing supporting
documents concerning the private lives of the birth and adoptive
parents. In an era where unmarried pregnancy was considered a disgrace
and infertility a humiliation, these restrictions were considered
justifiable. But these restrictions in no way required the identity
of the birth parent to be kept secret from the adoptive parent or
adoptee.
In fact, until the 1960’s, adoption orders invariably carried
the birth surname of the adopted child and since there were no legal
restrictions on revealing the given names of the birth parent, many
adoptive parents and, through them, adoptees had this key piece
of identifying information. Note also that s. 65 of the Rules of
the Ontario Court (Provincial Division) still allows the adoption
order to show the child’s full birth name although in practice
only a first initial of the surname has been used.
Prior to 1970 the adoptive parents had the right to have their child’s
full birth name on the Adoption Order. Unfortunately, this right
of choice was not presented to many of them.
The belief that such information should not be revealed was based
on the social theory that birth parents would not want contact with
adoptees and adoptive parents because the birth mother would “put
the episode behind her” and “get on with her life”
as though the birth had never taken place. Further, it was thought
that adoptees and adoptive parents would have no need for contact
with birth parents or relatives. If, as claimed in a 1993 consultation
paper of the Ministry on adoption disclosure, birth parents and
adoptive parents were “promised confidentiality forever”,
this promise was based on social theory, not on fact.
A major Canadian adoption sociologist and adoptive parent, Professor
H. David Kirk, suggests that confidentiality promises made to birth
mothers were not based on law, but on professional control of adoption
on the part of social workers.
With respect to the release of identifying information on adoptions
occurring after 1978, we understand from Ministry officials that
birth parents have been told that their identity may indeed be disclosed
without their consent because of the health, safety and welfare
amendments (s. 168) and the amendments concerning disclosure after
an unsuccessful search (s. 167(10), 169(4)).
The “Balance” Argument
Another argument that has been raised against releasing identifying
information on birth relatives as of right, is that the adoptee’s
right to this information must be “balanced” against the
birth mother’s right to privacy. On this issue, we have no
hesitation in stating that the adoptee’s right to his/her identity
is rooted in a far more basic human need than a right to privacy.
Where these two rights come into conflict, the adoptee’s right
must prevail. If the “best interests of the adoptee” is
the paramount objective of the adoption legislation and if they
consider it to be in their best interests to contact birth relatives,
they must be given the information to do so.
Some adoptees feel that because they had no say in the adoption
that so deeply altered their lives, their paramountcy remains forever.
We believe that once the adoptee becomes an adult, his/her rights
should be balanced equally with the rights of the adult birth family.
Many birth parents say that, although they signed relinquishment
documents under pressure, there was no alternative available. They
did not give up their children voluntarily and many of them suffer
lifelong effects from this relinquishment. They too need equal rights
to access information, to know the names of their lost children
and to find peace of mind.
Current legislation in the Child and Family Services Act, Part VII
and related Acts, alters the adopted person’s original birth
registration to insert amended adoptive names. This is called legal
fiction. An amended birth certificate for an adopted person incorrectly
states that the adoptee was born to the adopting parents.
Figures show the ADR is a very costly service. Government agencies
should not be in the search and detective business, a service better
handled by the private sector or the client him/herself.
England restored the unqualified right to the original birth registration
to adult adoptees in 1975. Victoria (Australia) did likewise in
1984.
New Zealand and New South Wales (Australia) followed and expanded
these changes. This led to broad social reforms in adoption and
post-adoption services. The results are extremely positive. Many
jurisdictions in Canada and the USA are using the successful Down
Under changes as a basis for their reforms.
Two different veto systems were developed. An Information Veto initiated
by New Zealand in 1985 allowed a birth parent or adoptee to veto
the release of identifying information to the other party for a
period of 10 years. Five years later, in 1990, New South Wales developed
a time-limited, signed, explanatory No-Contact Notice. The N.S.W.
no-contact notice recipient could not be refused his or her birth
registration data, but must not contact the other party while the
veto remained in effect.
In New Zealand, only 6% of birth parents placed information vetoes.
Some veto recipients sidestepped the veto successfully, searched
for and found the birth mother. In all such cases, the birth mother
was glad to be found and professed to be ‘protecting’
someone else. There were no complaints. Ten years later, when information
vetoes had expired, virtually none were renewed.
New South Wales’ more client-sensitive no contact notice system
produced almost total public compliance. When an explanation was
provided by the person requesting no contact, the recipient was
willing to comply.
A birth mother’s presumed “right” to privacy should
not nullify the adopted person’s right to important and fundamental
birth information when that information is common to both. The “best
interests of a child,” (CFSA, Sec. 136) are greater than those
of a birth parent for anonymity.
The matter is often said to be complex. The complexity arises not
per se from adoption but from the difficulties created by secrecy.
The conflict of rights in adoption arises to a large degree from
imposed secrecy, the denial of equal human rights and the attempt
to reconcile the effects of secrecy with the truth. This conflict
can sometimes be more imaginary than real.
There is courage and dignity in the decision to undertake a search.
It is never simply a matter of idle curiosity as others may think,
Nor is it an act of disloyalty to adoptive parents. It is the
right to know the truth about yourself and your roots.
[TALES]
|
